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For Obama, Empathy a Key Part of Judicial Temperament

By Peter SlevinThe Washington Post

CHICAGO  When President Barack Obama talks about the traits he admires in a Supreme Court justice, he ticks the predictable boxes  intellect, integrity, respect for the Constitution and the law. And sometimes he talks about Lilly Ledbetter and the quality he defines as empathy.

Ledbetter is the former Alabama tire company worker who learned through a furtive note from a colleague that she had long been earning less than her male counterparts. When her discrimination case reached the Supreme Court, five justices denied her claim, ruling that she sued too long after the pay decision was made.

Many conservatives welcomed the ruling as a strict and proper interpretation of the law: The statute of limitations had expired. But Obama considered the ruling heartless and said Ledbetter had been treated unfairly. "The court has to stand up," he said, "if nobody else will."

Obama, preparing to nominate a successor to Justice David H. Souter, has often said that the best judges take note of the real world. By making empathy a core qualification, he is uniting his own eclectic experience as a community organizer and constitutional law professor while demanding what he has called "a broader vision for what America should be."

Six months after he was elected on a promise to change the country's direction, Obama will be the first Democrat since 1994 to name a new justice. His choice will be informed by his conviction that the United States has become a meaner, less fair society and his belief that the court should play a "special role."

Obama offered clues to his thinking in January 2006, when he opposed the successful nomination of Samuel A. Alito Jr., then an appellate judge. In cases in which Supreme Court precedent was unclear, he said, Alito "consistently sides on behalf of the powerful against the powerless; on behalf of a strong government or corporation against upholding Americans' individual rights and liberties."

Alito's attitude, he said, did not support the role of the court as a "bastion of equality and justice for U.S. citizens."

Obama has deeper experience with constitutional law than any of his modern predecessors, having spent 11 years as a lecturer on the subject at the University of Chicago. For many of those years he was also an Illinois state senator, working the intersection of law and politics.

Former colleagues and students say he incorporated the real world into his legal approach by asking how rulings would affect people. He explored the Supreme Court's power, along with its limits.

"He didn't seem to really want to talk theory in the classes," said onetime student David Franklin, now a law professor at DePaul University. "He wanted to talk about what worked and what the real-world testing of those theories had yielded."

For Obama, "the Supreme Court is a part of his life in a way that the typical person just doesn't understand," said Douglas Baird, a friend and University of Chicago law professor. And yet the president, according to his associates, does not look to the high court as a source of seismic shifts.

Politics and legislation are the main engines of social change in Obama's view, said University of Chicago law professor David Strauss, "and the courts ... should be practical, common-sense, working around the edges. We shouldn't be looking to the courts for salvation."

For evidence, Obama pointed in class to the landmark 1954 Brown v. Board of Education ruling that outlawed school segregation. It was not until Congress took action 10 years later that desegregation began to gather momentum.

Obama has said that 95 percent of Supreme Court cases pose no great controversy, and that rulings typically result in no great divisions.

"But it's those 5 percent of the cases that really count," he told the Planned Parenthood Action Fund in 2007. "And in those 5 percent of cases, what you've got to look at is: What is in the justice's heart? What's their broader vision of what America should be?"

The president's focus has drawn criticism from many quarters, especially conservatives. Senate Minority Leader Mitch McConnell, R-Ky., interpreted Obama's focus on empathy as a determination to pick judges on their "perceived sympathy for certain groups or individuals." He said such an approach would undermine public faith in the judiciary.

After Souter's plans to retire became public, Obama spoke of empathy as "an essential ingredient for arriving at just decisions and outcomes." He said he would look for someone "who understands that justice isn't about some abstract legal theory."

"It is also about how our laws affect the daily realities of people's lives  whether they can make a living and care for their families, whether they feel safe in their homes and welcome in their communities."

Obama addressed empathy in his second book, "The Audacity of Hope," placing the capacity to understand others "at the heart of my moral code." To be able to empathize with people richer and poorer, more liberal and more conservative, is to be "forced beyond our limited vision," he wrote.

Obama connected his worldview to the bench in 2005 when he opposed the nomination of California Supreme Court Justice Janice Rogers Brown to the U.S. Court of Appeals for the District of Columbia Circuit. He said Brown was trying to create "a version of America" by siding with the powerful.

"It is social Darwinism," Obama said, "a view of America that says there is not a problem that cannot be solved by making sure that the rich get richer and the poor get poorer."